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(223 Mich. 343, 193 N. W. 820.) has done it so improperly as to injure the article on which it is done is unjustifiable and the amount may be recovered for want of consideration.

[See note on this question beginning on page 698.] Evidence of use of car -sufficiency. Complaint injury by bailee cause

2. That the gears on an automobile, of action. which were in good condition when 4. A complaint alleging that one the car was placed in storage, were undertaking to store an automobile for found stripped when the owner sought hire wrongfully used, or allowed it to to take it out, and that the speed- be used, and injured it, and that reometer had stopped working and the pair work was improperly done upon tires showed additional wear, will it states a cause of action. carry to the jury the question of the [See 3 R. C. L. 109-111; 1 R. C. L. use of the car by the bailee, although Supp. 769.] he and his servants deny such use. Trial directed verdict

when re

fused. Trial instruction loss caused by bailee.

5. A verdict cannot be directed for

defendant if there is evidence which 3. Where an automobile placed in

will support a finding for plaintiff. storage shows signs of use by the

[See 16 R. C. L. 185; 2 R. C. L. Supp. bailee, when taken out, and repairs

545; 26 R. C. L. 1068; 3 R. C. L. Supp. made necessary by such use are im

1491; 4 R. C. L. Supp. 1694.] properly made, an instruction in an

Pleading adding count to cover action to hold the bailee liable for the

claim improperly pleaded. injury, which places upon the owner 6. If a claim for a return of money the burden of proving that the use was paid for repairs improperly made in made by defendant or someone in his an action on the case is erroneous, a employ, with his permission or under count in assumpsit may be added. his direction, and that the repair work Trial – question for jury — money was not done in a good and workman

improperly paid. like manner, is as favorable as defend

7. The jury must determine whether ant is entitled to.

or not the money paid for repairs im[See 3 R. C. L. 151; 1 R. C. L. Supp. properly made on an automobile may 775; 4 R. C. L. Supp. 176. See also be recovered for want of consideranote in 15 A.L.R. 697.]

tion.

ERROR to the Circuit Court for Houghton County (O'Brien, J.) to review a judgment in favor of plaintiff in an action brought to recover damages for injuries to his automobile, alleged to have been in good condition when left with defendant for storage. Affirmed.

The facts are stated in the opinion of the court.

Messrs. Galbraith & McCormack for when he went again, some weeks latappellant.

er, “they were taking the car apart. Messrs. Anthony Lucas and Edward

I says, 'What's the matter?' F. Le Gendre for appellee.

'Oh,' he said, 'you stripped the gears Sharpe, J., delivered the opinion last fall.'

last fall. I says, 'If there is any of the court:

gears stripped, you must have done The plaintiff, a resident of Han- it yourself. How could I come from cock, owned a Chalmers automobile Hancock up here with the gears (1910 model). In the fall of 1919 stripped and didn't know anything he left it in defendant's garage in about it?' 'Well,' I says, 'if the Laurium for storage during the gears is stripped, fix it up.' winter, and also to have the mud They told me they could hardly get guards and hood painted. It is his it from the warehouse to the gaclaim that it was then in good work- rage.” ing condition. When he went after He further testified that he reit in the spring of 1920, the painting turned for the car on July 6; that had not been done. He testified that he was then told it was all right, and paid defendant's bill for re- rect proof of usage, and such use pairs--$40.71; that on his way home was denied by defendant and his emit “got out of gear; the lever fell ployees, we are persuaded that unout;" that he had to hold the lever der the testimony an issue of fact in his hand, or it would get out of for the jury was

Evidence of gear; that he took it back; that they presented. Plain- use of caradvised him to use it a little longer; tiff's testimony, if

sufficiency. that he next drove it about the 1st believed, establishes the fact that of August; that when he had driven

the car was in good working condiit half a block "the wheels fell down tion when he left it with defendant. through, one wheel there, one of the He also testified that the speedomgears, you know, fell down on the eter was then "working all right," street;" that he telephoned defend- and that when he took it away it ant, and he sent a truck after it and would not work at all; that the tires took it to his garage; that he went were worn down a little more than after it again in two or three weeks, when he left it. “There was more of and defendant told him it was not the fabric showing. .

::: I found ready—“'we can't get the stuff.' He out the tires were worn out a good says, 'The box is broke, and we deal more than when I put the car can't get them kind of boxes any there..

There were lots of more; the company that used to scratches around the doors, and one make them is busted.'” That he of the seats, one of the small seats, then took it to a garage in Red Jack- was ripped a little, and someone et and had it repaired at a cost of went to sew it up, and I found some $163.99.

thread and needle in the box under Plaintiff's claim is based on an al- the seat, and I am sure I never had legation that his car was in good the use of that myself; never had no working condition when he left it needles there, and there was none with defendant in the fall of 1919 there when I bought the car neither, and that its after condition was due I know. I never saw a torn spot in to its use while in defendant's posses- the seat.

I looked, and I see sion and his failure to do the repair it was ripped a little. The thread work properly. Plaintiff claimed the was sticking out in the cushion." right to recover the $163.99 paid for This testimony, if believed, clearrepairs, the $40.71 paid to defend- ly established the fact that some perant, $125 for loss of the use of the son had used the car during the time car, $30 for damages to speed- it was in defendant's possession. ometer, $50 for depreciation in tires, The charge imposed the duty on the due to such use, and $8 paid for tow- plaintiff to prove that either the deing the car to Red Jacket-in all, fendant himself, "or someone in his $417.70. The last three items were employ, with his permission, or uneliminated in the instructions of the der his direction, used that car, trial court. His right to recover on drove it during the time when it was the others was submitted to the supposed to be in the storage warejury, who found in his favor in the house,” and that the repair work sum of $260. Defendant's motion was not done in a good, workmanfor a directed verdict, having been like manner.” This was as favorreversed, was renewed, together was renewed, together able to the defend

Trial-instrucwith a motion for a new trial, and ant as he was en- tion-loss both denied. Defendant here re- titled to, under the caused by bailee. views the judgment entered on the law applicable to a bailment for the verdict on writ of error.

mutual benefit of the parties. 1. The right to a directed verdict It is also contended that the decis based on the claim that there was laration did not set up a cause of no evidence that the car had been action. It alleges the contract made used by defendant or any person in with defendant to store and paint a his employ. While there was no di. part of the car; that it was defend

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-cause of

refused.

(223 Mich. 343, 193 N. W. 820.) ant's duty to take reasonable and If so, the demand and acceptance of proper care of it; that defendant, payment was undisregarding such duty, did wrong: justifiable, and re- Work and labor

-receiving pay fully and unlawfully use and allow covery might be for repairs the car to be used, whereby it be

had for want of con- -recovery.

improperly made came seriously damaged; and that sideration therefor. the repair work was not properly Murphy v. McGraw, 74 Mich. 318, 41 done. We think it sufficiently stated N. W. 917. We have no doubt, after

a cause of action reading the entire charge, that the injurya by Tallee In 6 C. J. 1152, the jury understood they should allow

rule is thus stated : this item to plaintiff only in the action.

“The bailor may sue event that they found it was paid in case, where the subject-matter of on the assurance of defendant that the bailment has been misused by the work done made “the car all the bailee, or where a loss or injury right," and that such assurance was to the property has occurred from not true. There can be no question the latter's neglect. In fact, case but that plaintiff might recover if may be brought for any breach by the work done on the car, and for the bailee of duties implied by law which payment was made, in no way from the existence of the relation of improved the condition of the car, bailor and bailee, and if the duty but, on the contrary, caused it to be alleged to have been violated is one

more greatly damaged when it was that arises out of the relation, it is

afterwards driven. The claim of no objection to an Trial-directed

the defendant was before the jury, verdict-when action in case that

and we doubt not was forcibly urged the performance of the duty has been expressly stipu- by counsel. It is said that this item lated for.” The motion for a di

be rected verdict was properly denied.

of assumpsit. The allegation in the 2. Counsel urge that the court

declaration relative to it is specific,

and the claim itemized in the bill of erred in permitting. a recovery for the item of $40.71 paid by plaintiff particulars filed. If not recoverable to defendant for repairs. The court

in an action of trespass on the case, instructed the jury that, to entitle

a count in assumpsit might have

been added. Under plaintiff to recover for this item, he

circuit court rule Pleadingmust prove that it “was received by Mr. Dupont unjustifiably and

No. 22 (191 N. W. cover claim wrongfully,

and that it was

xvii) it may be pleaded.

added after judgpaid in order to avoid trouble with Mr. Dupont, and was really paid un

ment. The amount paid is not in der duress." It is plaintiff's claim dispute. Whether defendant was that, when he made this payment, he

liable for its repayment was a quesasked the defendant's son, in the

tion for the jury under the proofs. presence of the defendant:

'Is
We may, and do,

Trial-question this car all right?' He says, “Yes,

treat the

amend- for jury-money sure;' so I paid him everything that

ment as here made, improperly

paid. they asked for."

in order to sustain The use of the word “duress" was

the judgment. Johnson v. Muskeunfortunate. There is no proof that

gon County, 195 Mich. 722, 162 N. defendant required the payment of

W. 341: Peacock v. Detroit, G. H. & this sum as a condition precedent to

M. R. Co. 208 Mich. 403, 8 A.L.R. the delivery of the car to plaintiff.

669, 175 N. W. 580. There is proof, however, that it was

Finding no reversible error, the paid for repair work which in no

judgment is affirmed. way benefited the plaintiff; in fact, Wiest, Ch. J., and Fellows, Mcresulted in greater damages to the Donald, Clark, Bird, Moore, and car when it was afterwards driven. Steere, JJ., concur.

adding count to

ANNOTATION.

Recovery back of amount paid to bailee for repairs of no benefit to bailor.

Assumpsit for money had and received lies to recover back money paid on a contract, the consideration of which has failed. 2 R. C. L. 788. The reported case (LAPLANTE v. DUPONT, ante, 694) seems to be one of first impression on the right to recover, on the ground of want of consideration, an amount paid to bailee for repairs of no benefit to the bailor. If the repairs are of some value, though they do not satisfy the express or implied undertaking of the bailee, it would

seem an action for damages for breach of the contract would be the appropriate remedy, assuming that payment had been made in justifiable ignorance of the defects.

For liability of one contracting to make repairs for damages for improper performance of the work, see annotation in 1 A.L.R. 1654.

For duty and liability of garage keeper to owner of car, see annotation in 15 A.L.R. 681. L, S. E.

JOHN M. MILLER, Appt.,

V.
BANK OF HOLLY SPRINGS.

Mississippi Supreme Court (Division A) - February 12, 1923.

(131 Miss. 55, 95 So. 129.)

Bank — loss of saving stamps - burglary — liability.

1. In a case where a bank had on special deposit war savings stamps of one of its customers for safe-keeping, which had been placed in the bank's vault instead of in its safe, where its money was kept, and such customer, on learning from the public press that many banks in the country were being burglarized and United States war savings stamps and Liberty bonds of their customers stolen therefrom, informed said bank that he desired to move said war savings stamps to another bank for safekeeping, because he was afraid to have said stamps remain in its vault, and thereupon said bank agreed that if said depositor would permit his said stamps to remain with it, they would be placed in its safe where its money was kept, which was burglar proof, which proposition said depositor accepted, and said bank violated said agreement by permitting said stamps to remain in its vault, which was burglarized and said stamps stolen therefrom, while its safe where it kept its money was not. Held, said agreement is a special and not a general contract of bailment, and based on a sufficient consideration, and therefore said bank is liable to said depositor for the loss suffered by him.

[See note on this question beginning on page 703.] - power to guard valuables.

ury notes, or other valuable thing," is 2. A bank whose charter confers the

authorized to receive for safe-keeping, power on it “to receive on deposit in as special deposits, valuables of its any sum not less an $1 in lue of customers. gold or silver coin, bank notes, treas

[See 3 R. C. L. 450; 1 R. C. L. Supp.

829.) Headnotes by ANDERSON, J.

(131 Aliss. 55, 95 So. 129.) Contract consideration, sufficien- doing anything which he has the right cy.

to do, whether there be any actual 3. There is a "sufficient considera- loss to him or actual benefit to the tion” for a promise if there be any party making the promise; and such benefit to the promisor, or any loss, consideration is sufficient, even though detriment, or inconvenience to the it be inadequate. promisee, or if the person to whom [See 6 R. C. L. 654; 2 R. C. L. Supp. the promise is made refrains from 173; 4 R. C. L. Supp. 432.]

APPEAL by plaintiff from a judgment of the Circuit Court for Marshall County (Roane, J.) in favor of defendant in an action brought to recover the loss of war savings stamps, alleged to have been caused by breach of its agreement to put them in a burglar-proof safe. Reversed.

The facts are stated in the opinion of the court

Messrs. Wells, Stevens, & Jones, for There was a sufficient consideration appellant:

to support the contract in question. Defendant, having failed to keep its Odineal v. Barry, 24 Miss. 20; Byrne agreement to place the stamps in its v. Cummings, 41 Miss. 192; Magee v. safe, was liable to plaintiff for their Catching, 33 Miss. 672; Turner v. loss.

Brown, á Smedes & M. 425; Lawson, Tallahatchie Compress & Storage Co. Contr. 2d ed. § 98. v. Hartshorn, 125 Miss. 662, 17 A.L.R. Defendant cannot be heard to say 974. 88 So. 278; 4 Elliott, Contr. § that the act of receiving plaintiff's 3100; 40 Cyc. 431; 27 R. C. L. 999; 6 securities was ultra vires. C. J. 1111; Wiley v. Locke, 24 L.R.A. First Nat. Bank v. Graham, 100 U. (N.S.) 1117, 19 Ann. Cas. 241 and S. 701, 25 L. ed. 751, 1 Am. Neg. Cas. notes, 81 Kan. 143, 105 Pac. 11; Morti- 588; Elon College v. Elon Bkg. & T. mer v. Otto, 206 N. Y. 89, 99 N. E. 189, Co. 182 N. C. 298, 17 A.L.R. 1205, 109 Ann. Cas. 1914A, 1121, 2 N. C. C. A. S. E. 6; Pattison v. Syracuse Nat. 85; McCurdy v. Wallblom Furniture & Bank, 80 N. Y. 82, 36 Am. Rep. 589. Carpet Co. 94 Minn, 326, 102 N. W. Mr. Lester G. Fant, for appellee: 873, 3 Ann. Cas. 468; Sawyer v. Wil- If bonds are stolen the bank is rekinson, 166 N. C. 497, L.R.A.1915B, lieved of any liability, provided that 296, 82 S. E. 840.

the burglary is not made possible by The relationship between plaintiff gross negligence of the bank. and his bank was that of bailor and Wylie v. Northampton Nat. Bank, bailee.

119 U. S. 361, 30 L. ed. 455, 7 Sup. Ct. National Safe Deposit Co. v. Stead,

Rep. 268. 250 Ill. 584, 95 N. E. 973, Ann. Cas, In a special deposit no title passes 1912B, 430; Mayer v. Brensinger, 180 to the bank, but the bank holds as a Ill. 110, 72 Am. St. Rep. 196, 54 N. E. bailor of the depositor. 159; Jones v. Morgan, 90 N. Y. 4, 43 Fogg v. Tyler, 39 L.R.A.(N.S.) 847 Am. Rep. 131; Cussen v. Southern and note, 109 Me. 109, 82 Atl. 1008, California Sav. Bank, 133 Cal. 534, Ann. Cas. 1913E, 41. 85 Am. St. Rep. 221, 65 Pac. 1099; 6 A special deposit is deemed gratuC. J. 1127.

itous if it is accepted for the accomThe contract of bailment has been modation of the depositor, and without enlarged by special agreement guard- any undertaking by him, expressed or ing against theft and loss by theft, implied, to pay or do anything as comand the defendant is bound not only pensation or reward for keeping the by the legal relationship imposed by deposit. the law of bailment, but by the spe- Merchants Nat. Bank v. Guilmartin, cific undertaking assumed, and by the 88 Ga. 797, 17 L.R.A. 322, 15 S. E. 831; circumstances and situation of the First Nat. Bank v. Ocean Nat. Bank, parties.

60 N. Y. 278, 19 Am. Rep. 181; First First Nat. Bank v. Graham, 100 U. Nat. Bank v. Graham, 79 Pa. 106, 21 S. 699, 25 L. ed. 750, 1 Am. Neg. Cas. Am. Rep. 49; 3 R. C. L. 187. 588.

While unquestionably a bank would Messrs. E. M. Smith, E. C. Wright, be liable for the loss of a special deand D. M. Featherston, also for ap- posit for safe-keeping, but without repellant:

ward, through its gross negligence, yet

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